F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

JUN 28 1999

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCUS RENAULT SMITH,

No. 98-6205

Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-97-164-T)
Submitted on the briefs: *
Patrick M. Ryan, United States Attorney, and Michael C. James, Assistant United
States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal
Public Defender, Denver, Colorado, for Defendant-Appellant.
Before BRORBY, EBEL, and LUCERO, Circuit Judges.
EBEL, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause
therefore is ordered submitted without oral argument.
*

Defendant-Appellant Marcus Smith pled guilty to using and carrying a

handgun while committing a robbery of Credit Union Services Center (Credit
Union), in violation of 18 U.S.C. 924(c)(1). On February 23, 1998, the United
States District Court for the Western District of Oklahoma sentenced him to five
years imprisonment, followed by three years of supervised release. The district
court also ordered Smith to pay $9,364 in restitution to the Credit Union. Final
judgment was entered on February 25, 1998. Smith did not file a notice of appeal
within the next ten days, as provided by Fed. R. App. 4(b)(1). Instead, on March
27, 1998, Smith filed a pro se Motion For Out of Time Notice of Appeal. The
district court found excusable neglect and granted that motion on April 16. We
find Smiths motion to be the functional equivalent of a timely notice of appeal,
vesting this court with jurisdiction to hear Smiths appeal. However, we reject
Smiths appeal on the merits because Smiths plea expressly agreed to the
restitution order now challenged.

I.
This court cannot exercise jurisdiction absent a timely notice of appeal.
United States v. Langham, 77 F.3d 1280, 1280 (10th Cir. 1996) (A timely notice
of appeal is both mandatory and jurisdictional.). The timing requirements for
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filing appeals in the federal courts are set out in Rule 4 of the Federal Rules of
Appellate Procedure. In a criminal case, a defendants notice of appeal must be
filed in the district court within 10 days after . . . the entry of either the judgment
or the order being appealed. Fed. R. App. P. 4(b)(1). If that deadline is missed,
Fed. R. App. P. 4(b)(4) permits the district court, upon a proper showing of
excusable neglect or good cause, to extend the time to file a notice of appeal
for a period not to exceed 30 days from the expiration of the time otherwise
prescribed by this Rule 4(b).
In the instant case, final judgment was entered on February 25, 1998. Since
ten days after entry of judgment fell on a Saturday, March 7, the ten-day window
of opportunity for a notice of appeal pursuant to Rule 4(b)(1) ended on the
following Monday, March 9. See Fed. R. App. P. 26(a)(3). Smith did not file a
notice of appeal by that date. On March 27, 1998, Smith filed a pro se Motion
For Out of Time Notice of Appeal asking for a thirty-day grace period to file his
appeal. The district court waited until April 16 to grant Smiths pro se motion
after finding the requisite excusable neglect. Smith filed his Notice of Appeal
on May 4, 1998. 1 The time otherwise prescribed by Rule 4(b), which triggers
Although Smith is a pro se inmate purporting to have filed his notice of
appeal within the prisons internal mail system on April 20, 1998, we do not apply
the Houston v. Lack, 487 U.S. 266 (1988), pro se prisoner mailbox rule because
Smiths declaration of a timely filing did not, as required, state that first-class
postage has been prepaid. Fed. R. App. P. 4(c)(1).
1

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the beginning of the thirty-day period constraining the district courts power to
extend the appeal time, is the expiration of the original appeal period, which in
this case was March 9, 1998. Thus, even though the district courts order did not
state a specific deadline for Smith to file his notice of appeal, Rule 4(b)(4)
authorized the district court to grant Smith an extension of time to file his notice
of appeal up to April 8, which was thirty days after March 9.
By itself, the district courts grant of Smiths motion to file his notice of
appeal out of time is not enough to confer jurisdiction upon this court. Instead,
Smith also had to file his notice of appeal by April 8. Although Smiths formal
notice of appeal filed May 4, 1998 was clearly not timely filed, this fact does not
end the analysis. This court has jurisdiction to hear Smiths appeal if Smiths
Motion For Out of Time Notice of Appeal filed on March 27, 1998 is the
functional equivalent of a notice of appeal. See Torres v. Oakland Scavenger Co.,
487 U.S. 312, 316-17 (1988) ([I]f a litigant files papers in a fashion that is
technically at variance with the letter of a procedural rule, a court may
nonetheless find that the litigant has complied with the rule if the litigants action
is the functional equivalent of what the rule requires.).
In Longstreth v. City of Tulsa, Oklahoma, 948 F.2d 1193 (10th Cir. 1991),
we determined that the test for functional equivalence between a motion for
extension of time and notice of appeal required an expressed intent to appeal as
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well as the inclusion of the minimum information that Rule 3 required to be

included in a notice of appeal. We stated that motions to extend the time in
which to appeal, unlike notices of appeal, do not demonstrate intent to appeal.
Rather, asking for more time in which to file an appeal indicates uncertainty as to
whether one will file an appeal and compels the conclusion that the notice of
appeal is something yet to be filed. Id. at 1194.
However, the intent requirement of Longstreth was modified by Smith v.
Barry, 502 U.S. 244 (1992). In Smith, the Supreme Court stated:
While a notice of appeal must specifically indicate the litigants intent to
seek appellate review, the purpose of this requirement is to ensure that the
filing provides sufficient notice to other parties and the courts. Thus, the
notice afforded by a document, not the litigants motivation in filing it,
determines the documents sufficiency as a notice of appeal. If a document
filed within the time specified by Rule 4 gives the notice required by Rule
3, it is effective as a notice of appeal.
Id. at 248-49 (internal citations omitted) (emphasis added). As a result,
determining whether a motion is the functional equivalent of a notice of appeal
turns on the issue of notice. Rule 3 requires notice of three elements: the party
or parties taking the appeal by naming each one in the caption or body of the
notice; the judgment, order or part thereof appealed from; and the court to
which the appeal is taken. Fed. R. App. P. 3(c)(1). We must construe Rule 3
liberally when determining whether it has been complied with. Smith, 502 U.S.
at 248.
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Smiths motion contained the three elements of notice required by Rule

3(c). Smiths Motion For Out of Time Notice of Appeal identified that he was
the party taking the appeal, 2 that the order he appealed from was the restitution
order, and that the court to which the appeal was to be taken was the Tenth
Circuit Court of Appeals. Accordingly, we construe Smiths motion as the
functional equivalent of a notice of appeal. Since that motion was filed within
the allowable time, we deem it a timely functional equivalent, and therefore we
have jurisdiction over Smiths appeal. 3

The caption of the motion listed Marcus Renault Smith as the

defendant, and the body of the motion, in relevant parts, read:
2

COMES NOW, Marcus Smith, moving this Court for permission to file an
out-of[-] time notice of appeal. In support, this Defendant offers the
following.
1. On February 23, 1998, defendant SMITH received a SIXTYMONTH (60) federal sentence in the Court of the Honorable Judge
Thompson.
2. On February 25, 1998, defendant SMITH mails a letter to Counsel
of Record whom represented SMITH at the Rule 32 Hearing
requesting Counsel file a NOTICE OF APPEAL on the
SENTENCING of the above case number. . . . .
The appeal issue I pray the Court allows me to present is [that restitution was
unlawfully ordered] . . . . The issue is one merit Sir. I pray for appeal.
This conclusion renders moot Smiths argument that we should remand
the case for the limited purpose of determining whether he was denied effective
assistance of counsel by his attorneys alleged failure timely to file a formal
notice of appeal.
3

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II.
Turning to the merits, the sole issue on appeal is whether the district court
erred by ordering Smith to pay restitution to Credit Union for his violation of and
conviction under 18 U.S.C. 924(c)(1). As defense counsel below filed no
objections to the restitution order, our review is for plain error. See Fed. R. Crim.
P. 52(b). However, we have recognized that the imposition of an illegal
restitution order constitutes plain error. See United States v. Herndon, 982 F.2d
1411, 1420 (10th Cir. 1992).
As part of his plea, Smith and his attorney were
advised of the following matters concerning fines, interest on fines, and
restitution and agree to the following as part of this plea agreement:
....
(c) That pursuant to 18 U.S.C. 3663A, the Court shall enter an
order directing the defendant to make restitution to the victim or
victims of the offense charged in the Information as part of the
sentence that results from this plea.
The one-count offense charged in the Information was using a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C. 924(c). The
Information charged that Smith violated 924(c) while committing armed robbery
in violation of the Hobbs Act, 18 U.S.C. 1951. The Information also identified
the victim as the Credit Union Service Center and specified $11,709 as the
amount stolen.

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Smith argues that the district court erred in ordering restitution because
courts may only order restitution for losses caused by the offense of conviction,
and Smith was convicted of using and carrying a firearm in relation to a robbery
in violation of 924(c)(1), rather than the robbery itself which Smith contends
caused Credit Unions losses. This argument is unavailing given the clear
language of Smiths plea agreement. Because the Information identified the
Credit Union as the victim of the offense charged, and because Smith agreed in
his plea to make restitution to the victim[] of the offense charged, Smith
thereby agreed to make restitution to the Credit Union. Moreover, we find that
Smiths use of the gun during the robbery was an integral part and cause of the
injury and loss to Credit Union. As Smith himself admitted in his petition to
enter a guilty plea, he used a .38 revolver to rob a Credit Union Service Center
by force and fear. Consequently, the district court did not plainly err in ordering
restitution from Smith for Credit Unions pecuniary losses.
Accordingly, we AFFIRM the district courts sentence.

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